Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (3) TMI 1216 - CESTAT BANGALORELevy of additional taxes in order to get the interest which is legally due - claim of refund was rejected on the ground of time bar and principles of unjust enrichment - Section 11BB of the Central Excise Act, 1944 - HELD THAT:- Section 11BB of the Central Excise Act, 1944 which is extracted in the impugned Order-in-Appeal at page 5, makes it abundantly clear that the interest shall be paid to the assessee if refund is not granted within three months from the date of receipt of application for refund under Section 11B(1) ibid. This means that the interest under Section 11BB ibid. is automatic, which triggers when no refund is granted within three months of the date of application seeking refund. This Bench in its order in the first round of litigation in V PETER VERSUS COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, THIRUVANTHAPURAM [2020 (2) TMI 46 - CESTAT BANGALORE] which has also admittedly attained finality with the Revenue accepting the same. This Bench had clearly observed that there was a letter dated 25/11/2005 filed by the appellant stating that the service tax was being remitted under protest, which was sufficient to take the appellant’s case within the time embargo placed under Section 11B ibid. There was also a clear finding by this Bench that the appellant had not collected the service tax and hence, question of unjust enrichment would not be applicable. It is as per the above Order-in-Appeal that the appellant became entitled to refund since it was held in the said Order-in-Appeal that the appellant was not liable to pay service tax as commission agent for buying and selling of raw cashew and the export of cashew kernel. By not specifically granting interest under Section 11BB ibid. the adjudicating authority has clearly ignored both directions of this Bench, for which the Revenue has to answer, since, both the above orders have become final. Not following the order of a higher appellante authority amounts to judicial impropriety, especially when such order of a higher appellate authority has become final. In fact, the Ld. Commissioner (A) while passing the impugned order should have specifically directed for granting interest as well as indicated by me in the above paragraph, but that having not done, therefore, to this extent the impugned order invites interference. The appellant shall be entitled to the interest under Section 11BB ibid. from the date he got relief and became entitled to in his first appeal in the first round of litigation - Appeal allowed - decided in favor of appellant.
|